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A bill to be entitled 1
An act relating to health care provider 2
accountability; creating ss. 395.1062 and 400.0232, 3
F.S.; defining the terms "health care practitioner" 4
and "health care worker"; providing criminal and civil 5
immunity to health care workers of hospitals and 6
nursing home facilities, respectively, who carry out 7
directives of a supervising health care practitioner 8
or entity; providing an exception; amending s. 9
400.141, F.S.; requiring the Agency for Health Care 10
Administration to provide a report on the success of 11
the personal care attendant program to the Governor 12
and the Legislature by a specified date each year; 13
providing requirements for the report; requiring 14
nursing home facilities to report to the agency common 15
ownership relationships they or their parent companies 16
share with certain entities; requiring the agency to 17
work with stakeholders to determine how such reporting 18
shall be conducted; requiring the agency to submit a 19
report of such reported common ownership relationships 20
to the Governor and the Legislature by a specified 21
date each year; requiring the agency to adopt rules; 22
amending s. 409.908, F.S.; revising the rate 23
methodology for the agency's long -term care 24
reimbursement plan; requiring the agency to add a 25
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quality metric to its Quality Incentive Program for a 26
specified purpose; providing an effective date. 27
28
Be It Enacted by the Legislature of the State of Florida: 29
30
Section 1. Section 395.1062, Florida Statutes, is created 31
to read: 32
395.1062 Immunity from liability; certain health care 33
workers.— 34
(1) As used in this section, the term: 35
(a) "Health care practitioner" has the same meaning as 36
provided in s. 456.001. 37
(b) "Health care worker" means a health care practitioner 38
or a person otherwise licensed, registered, or certified to 39
provide health care services in this state. The term also 40
includes unlicensed persons authorized by law to perform tasks 41
delegated by, or provide health care services under the 42
supervision of, a licensed, registered, or certified person or 43
entity. 44
(2) A health care worker o f a hospital who carries out the 45
directive of a supervising health care practitioner or hospital 46
is not subject to criminal prosecution or civil liability, and 47
is deemed not to have engaged in unprofessional conduct, as a 48
result of carrying out the health care directive. 49
(3) This section does not apply if it is shown by a 50
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preponderance of the evidence that the health care worker did 51
not, in good faith, comply with the minimum standards of 52
acceptable and prevailing practice, including, but not limited 53
to, engaging in acts for which the health care worker is not 54
qualified by training or experience. 55
Section 2. Section 400.0232, Florida Statutes, is created 56
to read: 57
400.0232 Immunity from liability; certain health care 58
workers.— 59
(1) As used in this sec tion, the term: 60
(a) "Health care practitioner" has the same meaning as 61
provided in s. 456.001. 62
(b) "Health care worker" means a health care practitioner 63
or a person otherwise licensed, registered, or certified to 64
provide health care services in this st ate. The term also 65
includes unlicensed persons authorized by law to perform tasks 66
delegated by, or provide health care services under the 67
supervision of, a licensed, registered, or certified person or 68
entity. 69
(2) A health care worker who carries out the directive of 70
a supervising health care practitioner, a nursing home 71
administrator, or a nursing home facility is not subject to 72
criminal prosecution or civil liability, and is deemed not to 73
have engaged in unprofessional conduct, as a result of carrying 74
out the health care directive. 75
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(3) This section does not apply if it is shown by a 76
preponderance of the evidence that the health care worker did 77
not, in good faith, comply with the minimum standards of 78
acceptable and prevailing practice, including, but not limited 79
to, engaging in acts for which the health care worker is not 80
qualified by training or experience. 81
Section 3. Paragraph (w) of subsection (1) of section 82
400.141, Florida Statutes, is amended, and paragraph (x) is 83
added to that subsection, to re ad: 84
400.141 Administration and management of nursing home 85
facilities.— 86
(1) Every licensed facility shall comply with all 87
applicable standards and rules of the agency and shall: 88
(w) Be allowed to employ personal care attendants as 89
defined in s. 400.21 1(2)(d), if such personal care attendants 90
are participating in the personal care attendant training 91
program developed by the agency, in accordance with 42 C.F.R. 92
ss. 483.151-483.154, in consultation with the Board of Nursing. 93
1. The personal care attenda nt program must consist of a 94
minimum of 16 hours of education and must include all of the 95
topics and lessons specified in the program curriculum. 96
2. The program curriculum must include, but need not be 97
limited to, training in all of the following content areas: 98
a. Residents' rights. 99
b. Confidentiality of residents' personal information and 100
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medical records. 101
c. Control of contagious and infectious diseases. 102
d. Emergency response measures. 103
e. Assistance with activities of daily living. 104
f. Measuring vital signs. 105
g. Skin care and pressure sores prevention. 106
h. Portable oxygen use and safety. 107
i. Nutrition and hydration. 108
j. Dementia care. 109
3. A personal care attendant must complete the 16 hours of 110
required education before having any direct co ntact with a 111
resident. 112
4. A personal care attendant may not perform any task that 113
requires clinical assessment, interpretation, or judgment. 114
5. An individual employed as a personal care attendant 115
under s. 400.211(2)(d) must work exclusively for one nur sing 116
facility before becoming a certified nursing assistant. 117
118
The agency shall adopt rules necessary to implement this 119
paragraph. If the state of emergency declared by the Governor 120
pursuant to Executive Order No. 20 -52 is terminated before the 121
agency adopts rules to implement this paragraph, the agency 122
shall authorize the continuation of the personal care attendant 123
program until the agency adopts such rules. On January 1 of each 124
year, the agency shall provide a report to the Governor, the 125
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President of the Senate, and the Speaker of the House of 126
Representatives regarding the success of the program, including, 127
but not limited to, the number of personal care attendants who 128
took and passed the certified nursing assistant exam after 4 129
months of initial employment with a single nursing facility as 130
provided in s. 400.211(2); any adverse actions related to 131
patient care involving personal care attendants; the number of 132
certified nursing assistants who are employed and remain 133
employed each year after completing the per sonal care attendant 134
program; and the turnover rate of personal care attendants in 135
nursing home facilities. 136
(x) Report to the agency any common ownership the facility 137
or its parent company shares with a staffing or management 138
company, a vocational or phy sical rehabilitation company, or any 139
other company that conducts business within the nursing home 140
facility. The agency shall work with stakeholders to determine 141
how this reporting shall be conducted. By January 15 of each 142
year, the agency shall submit a re port to the Governor, the 143
President of the Senate, and the Speaker of the House of 144
Representatives on all common ownership relationships reported 145
to the agency in the preceding calendar year. The agency shall 146
adopt rules to implement this paragraph. 147
Section 4. Paragraph (b) of subsection (2) of section 148
409.908, Florida Statutes, is amended to read: 149
409.908 Reimbursement of Medicaid providers. —Subject to 150
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specific appropriations, the agency shall reimburse Medicaid 151
providers, in accordance with state an d federal law, according 152
to methodologies set forth in the rules of the agency and in 153
policy manuals and handbooks incorporated by reference therein. 154
These methodologies may include fee schedules, reimbursement 155
methods based on cost reporting, negotiated f ees, competitive 156
bidding pursuant to s. 287.057, and other mechanisms the agency 157
considers efficient and effective for purchasing services or 158
goods on behalf of recipients. If a provider is reimbursed based 159
on cost reporting and submits a cost report late and that cost 160
report would have been used to set a lower reimbursement rate 161
for a rate semester, then the provider's rate for that semester 162
shall be retroactively calculated using the new cost report, and 163
full payment at the recalculated rate shall be effe cted 164
retroactively. Medicare -granted extensions for filing cost 165
reports, if applicable, shall also apply to Medicaid cost 166
reports. Payment for Medicaid compensable services made on 167
behalf of Medicaid-eligible persons is subject to the 168
availability of money s and any limitations or directions 169
provided for in the General Appropriations Act or chapter 216. 170
Further, nothing in this section shall be construed to prevent 171
or limit the agency from adjusting fees, reimbursement rates, 172
lengths of stay, number of visit s, or number of services, or 173
making any other adjustments necessary to comply with the 174
availability of moneys and any limitations or directions 175
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provided for in the General Appropriations Act, provided the 176
adjustment is consistent with legislative intent. 177
(2) 178
(b) Subject to any limitations or directions in the 179
General Appropriations Act, the agency shall establish and 180
implement a state Title XIX Long -Term Care Reimbursement Plan 181
for nursing home care in order to provide care and services in 182
conformance with the applicable state and federal laws, rules, 183
regulations, and quality and safety standards and to ensure that 184
individuals eligible for medical assistance have reasonable 185
geographic access to such care. 186
1. The agency shall amend the long -term care reimbursement 187
plan and cost reporting system to create direct care and 188
indirect care subcomponents of the patient care component of the 189
per diem rate. These two subcomponents together shall equal the 190
patient care component of the per diem rate. Separate price s 191
shall be calculated for each patient care subcomponent, 192
initially based on the September 2016 rate setting cost reports 193
and subsequently based on the most recently audited cost report 194
used during a rebasing year. The direct care subcomponent of the 195
per diem rate for any providers still being reimbursed on a cost 196
basis shall be limited by the cost -based class ceiling, and the 197
indirect care subcomponent may be limited by the lower of the 198
cost-based class ceiling, the target rate class ceiling, or the 199
individual provider target. The ceilings and targets apply only 200
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to providers being reimbursed on a cost -based system. Effective 201
October 1, 2018, a prospective payment methodology shall be 202
implemented for rate setting purposes with the following 203
parameters: 204
a. Peer Groups, including: 205
(I) North-SMMC Regions 1-9, less Palm Beach and Okeechobee 206
Counties; and 207
(II) South-SMMC Regions 10-11, plus Palm Beach and 208
Okeechobee Counties. 209
b. Percentage of Median Costs based on the cost reports 210
used for September 2016 r ate setting: 211
(I) Direct Care Costs ................... 100 percent. 212
(II) Indirect Care Costs ................. 92 percent. 213
(III) Operating Costs .................... 86 percent. 214
c. Floors: 215
(I) Direct Care Component ............ 100 95 percent. 216
(II) Indirect Care Component ........... 92.5 percent. 217
(III) Operating Component ...................... None. 218
d. Pass-through Payments ............. Real Estate and 219
Personal Property 220
Taxes and Property Insurance. 221
e. Quality Incentive Program Payment 222
Pool 6 percent of September 223
2016 non-property related 224
payments of included facilities. 225
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f. Quality Score Threshold t o Quality for Quality 226
Incentive 227
Payment ............ 20th percentile of included facilities. 228
g. Fair Rental Value System Payment Parameters: 229
(I) Building Value per Square Foot based on 2018 RS Means. 230
(II) Land Valuation 10 percent of Gross Building value. 231
(III) Facility Square Footage .. Actual Square Footage. 232
(IV) Moveable Equipment Allowance .... $8,000 per bed. 233
(V) Obsolescence Factor ................. 1.5 percent. 234
(VI) Fair Rental Rate of Return ........... 8 percent. 235
(VII) Minimum Occupancy .................. 90 percent. 236
(VIII) Maximum Facility Age ................ 40 years. 237
(IX) Minimum Square Footage per Bed .............. 350. 238
(X) Maximum Square Footage for Bed ............... 500. 239
(XI) Minimum Cost of a renovation/replacements $500 per 240
bed. 241
h. Ventilator Supplemental payment of $200 per Medicaid 242
day of 40,000 ventilator Medicaid days per f iscal year. 243
2. The direct care subcomponent shall include salaries and 244
benefits of direct care staff providing nursing services 245
including registered nurses, licensed practical nurses, and 246
certified nursing assistants who deliver care directly to 247
residents in the nursing home facility, allowable therapy costs, 248
and dietary costs. This excludes nursing administration, staff 249
development, the staffing coordinator, and the administrative 250
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portion of the minimum data set and care plan coordinators. The 251
direct care subcomponent also includes medically necessary 252
dental care, vision care, hearing care, and podiatric care. 253
3. All other patient care costs shall be included in the 254
indirect care cost subcomponent of the patient care per diem 255
rate, including complex medical equipment, medical supplies, and 256
other allowable ancillary costs. Costs may not be allocated 257
directly or indirectly to the direct care subcomponent from a 258
home office or management company. 259
4. On July 1 of each year, the agency shall report to th e 260
Legislature direct and indirect care costs, including average 261
direct and indirect care costs per resident per facility and 262
direct care and indirect care salaries and benefits per category 263
of staff member per facility. 264
5. Every fourth year, the agency s hall rebase nursing home 265
prospective payment rates to reflect changes in cost based on 266
the most recently audited cost report for each participating 267
provider. 268
6. A direct care supplemental payment may be made to 269
providers whose direct care hours per patie nt day are above the 270
80th percentile and who provide Medicaid services to a larger 271
percentage of Medicaid patients than the state average. 272
7. For the period beginning on October 1, 2018, and ending 273
on September 30, 2021, the agency shall reimburse provid ers the 274
greater of their September 2016 cost -based rate or their 275
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prospective payment rate. Effective October 1, 2021, the agency 276
shall reimburse providers the greater of 95 percent of their 277
cost-based rate or their rebased prospective payment rate, using 278
the most recently audited cost report for each facility. This 279
subparagraph shall expire September 30, 2023. 280
8. Pediatric, Florida Department of Veterans Affairs, and 281
government-owned facilities are exempt from the pricing model 282
established in this subsect ion and shall remain on a cost -based 283
prospective payment system. Effective October 1, 2018, the 284
agency shall set rates for all facilities remaining on a cost -285
based prospective payment system using each facility's most 286
recently audited cost report, eliminat ing retroactive 287
settlements. 288
9. The agency shall add a quality metric to the Quality 289
Incentive Program to measure direct care staff turnover and the 290
long-term retention of direct care staff for purposes of 291
recognizing that a stable workforce increases th e quality of 292
nursing home resident care, as described in s. 400.235. 293
294
It is the intent of the Legislature that the reimbursement plan 295
achieve the goal of providing access to health care for nursing 296
home residents who require large amounts of care while 297
encouraging diversion services as an alternative to nursing home 298
care for residents who can be served within the community. The 299
agency shall base the establishment of any maximum rate of 300
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payment, whether overall or component, on the available moneys 301
as provided for in the General Appropriations Act. The agency 302
may base the maximum rate of payment on the results of 303
scientifically valid analysis and conclusions derived from 304
objective statistical data pertinent to the particular maximum 305
rate of payment. The agenc y shall base the rates of payments in 306
accordance with the minimum wage requirements as provided in the 307
General Appropriations Act. 308
Section 5. This act shall take effect July 1, 2023. 309